Citation Nr: 0209908
Decision Date: 08/15/02 Archive Date: 08/21/02
DOCKET NO. 97-00 550 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to a disability rating in excess of 10
percent for post-traumatic stress disorder (PTSD) prior to
February 16, 2000.
2. Entitlement to a disability rating in excess of 30
percent for PTSD subsequent to February 16, 2000.
3. Entitlement to a total disability rating due to
individual unemployability due to a service-connected
disability.
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Anne Howell, Counsel
INTRODUCTION
The veteran served on active duty from October 1952 to
October 1954.
This matter comes before the Board of Veterans' Appeals
(Board) at the North Little Rock, Arkansas, Regional Office
(RO), which granted entitlement to service connection for
PTSD and initially assigned a 10 percent evaluation effective
to April 3, 1996. Thereafter, the veteran disagreed with the
10 percent evaluation. By rating decision dated in April
2000, the RO increased his disability rating for PTSD to 30
percent and assigned an effective date of February 16, 2000.
However, a rating decision issued subsequent to a notice of
disagreement which grants less than the maximum available
rating does not "abrogate the pending appeal." AB v.
Brown, 6 Vet. App. 35, 38 (1993); see also Corchado v.
Derwinski, 1 Vet. App. 160 (1991). As the veteran has not
withdrawn the appeal, or otherwise limited consideration, the
characterization now on the title page reflects the issues
that are in need of appellate review. Further, in view of
the recent guidance, the issues before the Board are taken to
include whether there is any basis for "staged" ratings at
any pertinent time, to include whether a current increase is
in order. See Fenderson v. West, 12 Vet. App. 119 (1999).
Moreover, shortly after the veteran filed his claim for PTSD,
the applicable rating criteria for mental disorders, 38
C.F.R. § 4.125 et seq., was amended effective November 7,
1996. See 61 Fed. Reg. 52,695 (Oct. 8, 1996). The timing of
this change in the regulations requires the Board to first
consider whether the amended regulation is more favorable to
the veteran than the pre-amendment regulation, to include
separately applying the pre-amendment and amended versions to
determine which version is more favorable. If the amended
version is more favorable, the Board will apply the amended
version from the effective date of the amendment and the pre-
amendment version for any period preceding the effective
date; however, the effective date cannot be earlier than the
effective date of the change. In applying either version,
all evidence of record must be considered. See VAOPGCPREC 3-
2000; VAOPGCPREC 11-97; Karnas v. Derwinski, 1 Vet. App. 308
(1991).
In an October 2000 decision, the Board denied the veteran's
claim for a rating in excess of 10 percent prior to February
16, 2000, and in excess of a current 30 percent disability
rating under the pre-amendment and post-amended psychiatric
regulations. The Board also denied the veteran claim for a
total disability rating. The veteran appealed this decision
to the United States Court of Appeals for Veterans Claims
(Veterans Claims Court).
In November 2000, the Veterans Claims Assistance Act of 2000
(VCAA) was enacted as Public Law No. 106-475, 114 Stat. 2096
(Nov. 9, 2000). The new statute amended and clarified VA's
duty to assist claimants in the development of the facts
relevant to their claims, and is applicable to claims pending
at the time of its enactment, including the present claims
before the Board. This law also eliminated the concept of a
well-grounded claim. In March 2001, the Veterans Claims
Court vacated the Board's October 2000 decision and remanded
the case for readjudication in light of the new statutory
requirements.
FINDINGS OF FACT
1. The RO has developed all evidence necessary for an
equitable disposition of the veteran's claims.
2. Neither the pre-amendment or post-amended psychiatric
regulations are more favorable to the veteran and both will
be applied as applicable.
3. Prior to February 16, 2000, the veteran's PTSD did not
produce more than "mild" social and industrial impairment
under the pre-amendment criteria, nor more than "mild"
symptoms as described in the amended criteria as demonstrated
by complaints of difficulty sleeping, nightmares, anxiety,
exaggerated startle response, and periods of anger; however,
the veteran was able to maintain a good
relationship with his family and friends, attended church
regularly, and engaged in certain hobbies.
4. Prior to February 16, 2000, there was evidence of a
chronic sleep impairment and anxiety, but no indications of
depressed mood, suspiciousness, panic attacks, or memory loss
due to PTSD. Neither "definite" industrial impairment nor
intermittent periods of an inability to perform occupational
tasks was shown.
5. Since February 16, 2000, the veteran's service-connected
PTSD produces no more than a "definite" impairment of
social and industrial adaptability under the pre-amendment
criteria, and no more than occasional decrease in work
efficiency as described in the amended criteria as
demonstrated by avoidance of crowds, frequent intrusive
thoughts of Korea, and the characterization of his PTSD
symptoms as "mildly to moderately severe."
6. Since February 16, 2000, there is no evidence of
flattened affect, altered speech patterns, frequent panic
attacks, difficulty in understanding complex commands, memory
impairment, impaired judgment or abstract thinking,
disturbance of motivation and mood, or "considerable"
impairment in social and industrial adaptability due to PTSD
symptomatology.
7. At no time has the veteran been on psychiatric
medication, received psychiatric treatment, or been
hospitalized for a psychiatric disorder.
8. The veteran has a single service-connected disability
rating for PTSD currently evaluated at 30 percent disabling.
9. The veteran maintains that he has not worked full-time
since the 1992, and has a high school education. He has
experience primarily as a janitor.
10. The veteran's single service-connected disability does
not render it impossible for the average person to follow a
substantially gainful occupation or render him unable to
secure or follow a substantially gainful occupation
consistent with his occupational experience and education.
CONCLUSIONS OF LAW
1. The criteria for a schedular evaluation in excess of 10
percent for PTSD prior to February 16, 2000, have not been
met. 38 U.S.C.A. §§ 1155, 5103A (West 1991 & Supp. 2001); 38
C.F.R. §§ 4.125, 4.126, 4.129, 4.130, 4.132, Diagnostic Code
(DC) 9411 (1996); 38 C.F.R. §§ 4.126, 4.130, DCs 9411, 9440
(2001).
2. The criteria for a schedular evaluation in excess of 30
percent for PTSD subsequent to February 16, 2000, have not
been met. 38 U.S.C.A. §§ 1155, 5103A (West 1991 & Supp.
2001); 38 C.F.R. §§ 4.125, 4.126, 4.129, 4.130, 4.132,
Diagnostic Code (DC) 9411 (1996); 38 C.F.R. §§ 4.126, 4.130,
DCs 9411, 9440 (2001).
3. The criteria for the assignment of a total rating by
reason of individual unemployability due to a service-
connected disability have not been met. 38 U.S.C.A. §§ 1155,
5103A (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.321,
3.340, 3.341, 4.16 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran contends that his PTSD has worsened and that he
should be awarded an increased rating for the disorder. He
also asserts that he is unable to work due to his service-
connected disability. For the reasons and bases discussed
below, the Board concludes that the criteria for a rating in
excess of 10 percent for PTSD were not been met prior to
February 16, 2000, nor is a rating in excess of 30 percent
currently warranted.
I. Entitlement to Higher Disability Ratings for PTSD
Under the Pre-Amendment and Post-Amended Psychiatric
Criteria
Relevant Regulations: Disability evaluations are determined
by the application of a schedule of ratings which is based on
average impairment of earning capacity. Generally, the
degrees of disability specified are considered adequate to
compensate for considerable loss of working time from
exacerbations or illnesses proportionate to the severity of
the several grades of disability. 38 C.F.R. § 4.1 (2001).
Separate diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155 (West 1991 & Supp. 2001); 38 C.F.R. Part 4
(2001). However, the Board will consider only those factors
contained wholly in the rating criteria. See Massey v.
Brown, 7 Vet. App. 204, 208 (1994). Where there is a
question as to which of two evaluations shall be applied, the
higher evaluations will be assigned if the disability more
closely approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7 (2001). When, after careful consideration of all
procurable and assembled data, a reasonable doubt arises
regarding the degree of disability, such doubt will be
resolved in favor of the veteran. 38 C.F.R. § 4.3 (2001).
The RO rated the veteran's PTSD under DC 9411. As noted
above, the applicable rating criteria for mental disorders
was amended effective November 7, 1996, shortly after the
veteran filed his claim. Because there is no basis upon
which to conclude that the earlier version of the pertinent
regulations is more or less favorable to the veteran, the
Board will adjudicate the veteran's claim pursuant to the
regulations in effect at the applicable times.
Under the pre-amended criteria, PTSD was evaluated 30 percent
disabling where there was definite impairment in the ability
to establish or maintain effective and wholesome
relationships with people, and the psychoneurotic symptoms
result in such reduction in initiative, flexibility,
efficiency and reliability levels as to produce definite
industrial impairment. A 10 percent rating was for
assignment where the symptoms were less than those for a 30
percent rating, with emotional tension or other evidence of
anxiety productive of mild social and industrial impairment.
Former DC 9411 also provided that a 50 percent evaluation was
warranted for PTSD where the ability to establish or maintain
effective or favorable relationships with people was
considerably impaired and where the reliability, flexibility
and efficiency levels were so reduced by reason of
psychoneurotic symptoms as to result in considerable
industrial impairment. A 70 percent evaluation required that
the ability to establish and maintain effective or favorable
relationships with people be severely impaired and that the
psychoneurotic symptoms be of such severity and persistence
that there was severe impairment in the ability to obtain or
retain employment. 38 C.F.R. § 4.132, DC 9411 (1996).
Finally, a 100 percent evaluation required that attitudes of
all contacts except the most intimate be so adversely
affected as to result in virtual isolation in the community
and there be totally incapacitating psychoneurotic symptoms
bordering on gross repudiation of reality with disturbed
thought or behavioral processes (such as fantasy, confusion,
panic, and explosions of aggressive energy) associated with
almost all daily activities resulting in a profound retreat
from mature behavior; and that the individual was thereby
demonstrably unable to obtain or retain employment. It has
also been recognized that each criteria for a 100 percent
rating under 38 C.F.R. § 4.132 was independent. Johnson v.
Brown, 7 Vet. App. 95, 97 (1994).
The General Counsel of the VA issued a precedent opinion
interpreting the terms mild, definite, and considerable, as
applied in 38 C.F.R. § 4.132. See O.G.C. Prec. 9-93, 59 Fed.
Reg. 4753 (1994). In that opinion, the term mild, the
criterion for a 10 percent evaluation, was defined as "of
moderate strength or intensity, and as applied to disease,
not severe or dangerous." Definite, the criterion for a 30
percent rating, was construed quantitatively to mean
"distinct, unambiguous, and moderately large in degree," and
considerable, the criterion for a 50 percent evaluation, was
defined as "rather large in extent or degree." Id. In
addition, the term "definite" in 38 C.F.R. § 4.132 was
"qualitative" in character, whereas, the other terms were
"quantitative" in character, and invited the Board to
"construe" the term "definite" in a manner that would
quantify the degree of impairment for purposes of meeting the
statutory requirement that the Board articulate "reasons and
bases" for its decision. See Hood v. Brown, 4 Vet. App. 301
(1993).
Under the pre-amended regulations, the severity of a
psychiatric disability was based upon actual symptomatology,
as it affected social and industrial adaptability. Two of
the most important determinants of disability were time lost
from gainful work and decrease in work efficiency. Great
emphasis was placed upon the full report of the examiner,
descriptive of actual symptomatology. The record of the
history and complaints was only preliminary to the
examination; the objective findings and the examiner's
analysis of the symptomatology were the essentials. 38
C.F.R. § 4.130 (1996). The principle of social and
industrial inadaptability as the basic criterion for rating
disability for the mental disorders contemplated those
abnormalities of conduct, judgment, and emotional reactions
which affected economic adjustment, i.e., which produce
impairment of earning capacity. 38 C.F.R. § 4.129 (1996).
Under regulations that took effect during the pendency of
this appeal (the post-amendment criteria), which were
considered by the RO, a 10 percent evaluation may be assigned
with occupational and social impairment due to mild or
transient symptoms which decrease work efficiency and ability
to perform occupational tasks only during periods of
significant stress, or with symptoms controlled by continuous
medication. A 30 percent evaluation will be assigned for
PTSD with occupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although generally
functioning satisfactorily, with routine behavior, self-care,
and conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events).
A 50 percent evaluation will be assigned for PTSD which
produces occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships.
A 70 percent evaluation is warranted when occupational and
social impairment is present with deficiencies in most areas,
such as work, school, family relations, judgment, thinking,
or mood, due to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant;
near-continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); and an inability to establish and maintain
effective relationships.
Finally, a 100 percent evaluation is warranted for total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name. 38 C.F.R.
§ 4.130, DC 9411 (2001).
Factual Background: Historically, the veteran filed his
initial claim for service connection for PTSD in April 1996,
which the RO granted by rating decision dated in May 1996 and
assigned a 10 percent rating effective April 11, 1996. The
veteran disagreed with the rating. In January 2000, the
Board remanded the issue for additional development to
include a VA examination. Following a February 2000 VA
examination, the RO granted a 30 percent disability rating
effective February 16, 2000, the date of the examination.
The veteran challenges the disability ratings for the entire
time on appeal.
The medical evidence shows that the veteran complained of
difficulty sleeping, visions, and nervousness in a May 1996
VA examination. He alleged that he could not sleep more than
two or three hours before getting up. He reported nightmares
every night and saw dead people. He denied mental health
treatment or use of psychotropic medications. He reported
that he did his best if he could stay to himself but denied
being easily startled by noise. There were times that he
could be in crowds and other times when he could not. He
stated that he went to restaurants often and enjoys it;
however, he would sit by himself. He avoided war movies and
it bothered him to see Asians. His son accompanied him to
the grocery store. He had been divorced for about three
years and the marriage terminated because they "just
couldn't get along." He indicated that he spent his time
fishing and going to dog and horse races.
A mental status examination revealed that the veteran was
anxious but affect was appropriate to content. Thought
processes and associations were logical and tight. He had no
loosening of associations or confusion. He similarly had no
observed gross impairment of memory and was oriented times
three. He denied hallucinations and no delusional material
was noted during the examination. Insight was limited,
judgment was adequate, and he denied suicidal ideation. The
examiner diagnosed PTSD, chronic, mild.
In an August 1996 private psychological evaluation, the
veteran reported that he was easily upset and would get
explosive, avoided crowds and noise, and noted a history of
flashbacks which had "cleared." He indicated that he got
upset when he heard loud noises, that he had an exaggerated
startle response, and reported problems with concentration
and irritability. The clinical psychologist noted that the
veteran's symptoms were reflective of PTSD; however, the
veteran indicated that his PTSD did not stop him from
working; rather, his age and problems with back pain
prevented him from working. He stated that he took early
retirement due to his back. The examiner noted that the
veteran was illiterate.
Testing revealed an age-adjusted memory quotient and placed
the veteran at the borderline between mental retardation and
borderline memory functions. The examiner stated that it was
clear that the veteran was cognitively deteriorating and had
some dementia. Testing was positive for crying spells,
nightmares, poor concentration, periodically hearing voices,
feelings of uselessness, low self confidence, weakness,
disequilibrium, worry, loneliness, and sensitivity. Anxiety,
due to PTSD, was found to be at a borderline level. The
psychologist concluded that the veteran's PTSD symptoms were:
fairly mild in the sense that they
allowed him to work in the past and
[were] not disabling. Were [the veteran]
of working age, his PTSD symptoms would
reflect emotional tension and evidence of
anxiety productive of moderate social and
industrial impairment.
The final diagnoses included dysthymia, dementia, and PTSD
with a global assessment of functioning (GAF) score of 50.
At a December 1996 personal hearing, the veteran testified
that he was 69 years old and had a 12th grade education. He
stated that he last worked in 1993 as a janitor. He reported
that he had been divorced twice; however, did not feel that
his mental condition contributed to his divorces. After his
most recent divorce, he indicated that he could not get along
with anyone. While he reported that he experienced
nightmares, he reflected that he slept well at night. He
noted that he went to church, liked to fish, and had a good
relationship with his children and grandchildren.
In a November 1997 VA examination, the veteran initially
denied that he had any mental health problem. He stated that
on occasion pressure would build up and then the "least
little thing" would upset him but reported that he seldom
had any nightmares and found the ones he had not especially
troublesome. He denied intrusive thoughts about Korea, but
indicated that he could not stand noises and avoided large
crowds. He stated that he enjoyed war movies and it did not
bother him to see Koreans. He spent his time fishing and
going to church, and had a few friends whom he visited about
once a week.
Mental status examination revealed that the veteran was
casually groomed and conversed readily during the interview
but was unshaven. There was no anxiety or dysphoria and the
veteran's behavior was within normal limits. His speech was
within normal limits, his mood was euthymic, his affect was
appropriate to content, and his thought processes and
associations were logical and tight with no loosening of
associations and no confusion. He was oriented times three
with some memory impairment. He denied hallucinations and no
delusional material was noted during the examination. His
insight and judgment were adequate, and he denied suicidal
ideations. The examiner found no psychiatric disorder or
condition.
At an October 1999 hearing before the Board, the veteran
testified that he last worked as a machinist. He stated that
he felt nervous all the time, normally slept about 12 hours a
night, thought about the military a little bit, and had
restless nights but did not think about his time overseas.
He stated that, while he preferred to live alone, he trusted
people. He stated that he was unable to work due to a
pulmonary disorder manifested by shortness of breath. He
indicated that he had not been prescribed any medications to
help with his anxiety attacks. When asked if his physician
had recommended evaluation and treatment, the veteran replied
"not on my knowledge." He indicated that while he did not
"run around" with others, his relatives came to visit him.
He indicated that he had been feeling tense lately, but
attributed these feelings to his age. When asked if he
experienced any intrusive thoughts when subject of Korea was
raised, the veteran replied that he hoped that the food was
better and he remembered snow and ice.
In a February 2000 VA examination, the veteran was noted to
be 72 years old and did not receive any mental health
treatment, nor take any psychotropic medications. He
complained that he did not "feel right" and did not like to
be around a crowd of people, preferring to be by himself. He
could not sleep at night, but did not know why, and noted
that he slept during the day. He denied any nightmares but
reported frequent intrusive thoughts about his experiences in
Korea and noted that he saw a lot of men getting killed. He
reported that that he was easily startled by noises. He
admitted that he was able to shop but went in and out of
stores quickly. He no longer watched war movies as they made
him nervous; however, it did not bother him to see Koreans.
He had worked 19 years in janitorial service without any
problems and subsequently took a job as a supervisor of
janitorial service and enjoyed that job. He spent a good
deal of time fishing, attended church frequently, and had
"quite a few friends at church," although he spent most of
his time alone.
A mental status examination reflected that the veteran was
casually groomed with somewhat limited eye contact. The
veteran demonstrated no significant anxiety or dysphoria
during the examination, speech was within normal limits with
regard to rate and rhythm, mood was generally euthymic,
affect was appropriate to content, thought processes and
associations were logical and tight, and there was no
loosening of associations or confusion. The veteran could
not name the past president or the current governor but was
generally oriented in all spheres, although he did not know
the exact date. He denied hallucinations and the examiner
found no evidence of delusional material during the
examination. Insight was somewhat limited; however, his
judgment was adequate. He denied any suicidal or homicidal
ideations. A diagnosis of PTSD was rendered with a GAF score
of 59.
The examiner related that this was the third time that he had
examined the veteran and that his presentation has varied.
He could not account for the differing presentations. The
examiner reflected that the veteran appeared to meet the
criteria for PTSD during the examination on the basis of
intrusive thoughts and difficulty maintaining close
relationships. On the other hand, the veteran reported
frequent church attendance and socialization with people at
church. The examiner indicated his symptomatology was
indicative of mildly to moderately severe PTSD.
Legal Analysis: As discussed in detail below, the Board
finds that the current ratings for PTSD are appropriate under
the pre-amended and post-amendment criteria.
A 10 Percent Rating, But No Higher, is Warranted for the
Period Prior to February 2000 Under the Pre-Amendment and
Post-Amended Regulations
After a careful review of the evidence, the Board finds that
a 10 percent rating, but no more, is appropriate prior to
February 2000 under the relevant psychiatric regulations.
First, while the veteran related that he preferred to be
alone and had occasional nightmares of his service in Korea,
the evidence does not show "definite" impairment in the
ability to establish or maintain effective relationships as
contemplated by the pre-amended rating criteria. The Board
is particularly persuaded by the evidence that the veteran
attended church regularly, was able to maintain a good
relationship with his children and grandchildren, and was
able to engage in hobbies (fishing, dog and horse racing).
Further, he acknowledged that he had friends whom he visited
on a weekly basis. This evidence indicates to the Board that
the veteran was able to successfully maintain close
relationship with a number of people on various levels
(family, church, friends).
Moreover, the Board places significant probative weight on
private psychological testing undertaken in August 1996,
which characterized the veteran's PTSD symptomatology as
"mild" and noted that it did not affect his ability to work
in the past. The Board also notes the November 1997 VA
examination, where the veteran actually denied having a
mental disorder and stated that he seldom had nightmares,
which were not especially troublesome.
Further, the Board is persuaded that the veteran's PTSD was
no more than "mild" under the pre-amendment regulations
prior to February 2000 on the basis that he did not receive
regular psychiatric treatment, was on no psychiatric
medication, and had never been hospitalized for a psychiatric
disorder. Outpatient treatment records associated with the
claims file confirm an absence of psychiatric treatment, nor
has the veteran asserted that any such records exist. In
addition, while some memory impairment and anxiety was noted
in the VA examinations, he was consistently oriented to
person, place and time. As such, the Board finds that the
criteria for an increased disability rating for PTSD prior to
February 16, 2000, are not met under the pre-amendment rating
criteria.
Turning next to the veteran's disability rating prior to
February 16, 2000, under the post-amendment rating criteria,
the Board finds that the evidence supports no more than a 10
percent rating for "mild" symptoms with decreased work
efficiency. As noted above, while the veteran expressed some
difficulty with crowds, anxiety, difficulty sleeping and
nightmares, there was no indication of symptoms consistent
with the next highest rating under the post-amendment
criteria such as depressed mood, suspiciousness, panic
attacks, or mild memory loss as a result of PTSD. The Board
is persuaded that a May 1996 VA examination report showed
that the veteran's thought process and associations were
logical and tight, and his memory was intact. He was able to
go grocery shopping with his son and attended dog and horse
races. He had no impairment of memory and was oriented to
person, place, and time.
Similarly, the August 1996 private medical report showed that
the veteran stopped working due to his age and his back
disorder, not a psychiatric disability. The examiner noted
that the veteran was cognitively deteriorating and had some
dementia; however, he was shown to be illiterate with an
adjusted-memory quotient placing him between mental
retardation and borderline memory functions. Moreover, the
testing psychologist implied that these symptoms were not
related to PTSD. With regard to the veteran's PTSD symptoms,
the psychologist noted these symptoms were "fairly mild."
Moreover, a November 1997 VA examination report indicated
that the veteran complained that he was easily angered but
his behavior was within normal limits. The examiner found no
psychiatric disorder or condition. The Board has again
considered the evidence that the veteran attended church
regularly, had a good relationship with his family, and
visited friends weekly in determining that a no higher than
10 percent rating is warranted under the post-amendment
regulations. Therefore, the Board finds that the medical
evidence prior to February 2000, as set forth above, does not
show that the veteran demonstrated more than "mild"
symptoms and a higher rating under the post-amendment
criteria is not warranted.
A 30 Percent Rating, But No Higher, is Warranted for the
Period Subsequent to February 2000 Under the Pre-Amendment
and Post-Amended Regulations
After a review of the evidence, the Board finds that an
increased disability rating for PTSD, currently evaluated as
30 percent, is not warranted under the pre-amendment
criteria. The most recent medical evidence obtained during
the February 2000 VA examination indicates that while the
veteran stated that he had frequent intrusive thoughts about
his experiences in Korea, the evidence does not show that his
ability to establish or maintain effective or favorable
relationships with people was "considerably" impaired as
contemplated by a 50 percent disability rating. On the
contrary, he continued to attend church frequently and had
quite a few friends at church. Moreover, there was no
significant anxiety or dysphoria, and his speech was normal.
Similarly, the February 2000 VA examination report does not
show objective evidence of considerable impairment in the
ability to establish or maintain effective or favorable
relationships resulting from the veteran's PTSD. As stated
above, he attended church regular and maintained friendships.
The evidence does not indicate the veteran's psychoneurotic
symptoms caused such reduction in reliability, flexibility,
and efficiency levels so as to result in considerable
industrial impairment. While he complained of difficulty
sleeping at night, he did not know why he could not sleep.
Further, although he had intrusive thoughts about service in
Korea, he denied nightmares and hallucinations, and his mood
was euthymic, his thought processes and associations logical,
and his judgment adequate. The medical evidence, as set
forth above, shows that his concentration and memory were
also intact. He was oriented in all spheres. The evidence
shows that he veteran did not receive any mental health
treatment, nor did he take any psychotropic medications. A
GAF of 59 was assigned denoting "moderate" manifestations.
In addition, while it is clear that the veteran was
unemployed, he has variously related it to his age, back
pain, and, more recently, a respiratory disorder. Moreover,
no examining or treating mental health professional has
indicated that the veteran could not work due to PTSD. To
the contrary, the August 1996 clinical psychologist
specifically remarked that the veteran's PTSD symptoms were
"fairly mild" just for the reason that he had been able to
work in the past. Therefore, the Board finds that the
criteria for an increased disability rating for PTSD,
currently evaluated as 30 percent disabling, are not met.
Similarly, after a review of the evidence the Board finds
that an increased disability rating, subsequent to February
16, 2000, is not in order under the post-amendment rating
criteria. In doing so, the Board notes the post-amendment
criteria may not be applied prior to the effective date of
the change. See VAOPGCPREC 3-00.
While the evidence shows that the veteran has anxiety,
difficulty sleeping, intrusive thoughts of Korea, and
occasional nightmares, the evidence does not show that he
experienced symptoms such as flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short and long term memory;
impaired judgment; impaired abstract thinking; disturbances
of motivation and mood; or difficulty in establishing and
maintaining effective work and social relationships.
On the contrary, the February 2000 VA examination report
indicates that his mood was generally euthymic and his affect
was appropriate. His thought process and associations were
logical and tight without loosening of associations or
confusion. While he had limited insight, his judgment was
adequate. He was oriented in all spheres. Moreover, there
were no panic attacks reported, nor was there a flattened
affect or irregular speech. As stated previously, the
examiner found that the veteran's symptomatology was
indicative of mildly to moderately severe PTSD. Therefore,
despite his tendency toward social isolation, the Board does
not feel that the veteran's level of occupational and social
impairment rises to the level of considerable industrial
impairment as envisioned by an increased disability rating.
Accordingly, the Board finds that an increased disability
rating for PTSD, currently evaluated as 30 percent disabling,
is not warranted.
The Board has been presented with clinical evidence which
consistently reflects no more than a 10 percent rating due to
PTSD based on the pre-amendment and post-amended regulations
prior to February 2000, and no more than the current 30
percent rating under the pre-amendment and post-amended
regulations. The Board has considered the veteran's written
statements and sworn testimony that his PTSD is worse than
currently evaluated. Although his statements are probative
of symptomatology, they are not competent or credible
evidence of a diagnosis, date of onset, or medical causation
of a disability. See Grottveit v. Brown, 5 Vet. App. 91, 93
(1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992); Miller v. Derwinski, 2 Vet. App. 578, 580 (1992). As
noted, disability ratings are made by the application of a
schedule of ratings which is based on average impairment of
earning capacity as determined by the clinical evidence of
record. The Board finds that the medical findings, which
directly address the criteria under which the service-
connected disability is evaluated, more probative than the
subjective evidence of an increased disability.
II. Entitlement to a Total Disability Evaluation
Based on Individual Unemployability
The veteran contends that he is unable to secure or follow a
substantially gainful occupation by reason of his service-
connected disability and that a total disability rating for
compensation purposes based on individual unemployability by
reason of his service-connected disability is warranted.
After a review of the record, the Board finds that the
veteran's contentions are not supported by the evidence, and
his claim is denied.
Relevant Regulations: Total disability ratings for
compensation may be assigned where the schedular rating is
less than total, when the disabled person is unable to secure
or follow a substantially gainful occupation as the result of
service-connected disabilities; provided that, if there is
only one such disability, this disability is ratable at 60
percent or more, and that if there are two or more
disabilities, there is at least one disability ratable at 40
percent or more, and sufficient additional disabilities to
bring the combined rating to 70 percent or more. 38 C.F.R. §
4.16(a) (2001). Veterans who fail to meet these percentage
standards but are nonetheless unemployable by reason of
service-connected disabilities may still be rated as totally
disabled. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(b) (2001).
In addition, the Board has considered 38 C.F.R. § 3.340 which
provides that a total disability will be considered to exist
when there is present any impairment of mind or body which is
sufficient to render it impossible for the average person to
follow a substantially gainful occupation. In other words,
38 C.F.R. § 3.340 deals with the average person standard and
38 C.F.R. § 4.16(a) deals with the particular individual.
The award of a total rating requires a showing that the
veteran is precluded from employment due to service connected
disabilities. The adverse affects of advancing age may not
be considered in support of the claimed benefit. 38 C.F.R. §
4.19 (2001).
Factual Background: In a 1984 application for compensation,
the veteran represented that he had not worked since 1981 and
had experience servicing cars. However, in a subsequent
application for compensation, he noted that he last worked in
1987 as a supervisor of janitorial services. In a 1995 Net
Worth and Employment Statement, he reported that he was being
treated for neck and back problems and could not work because
he was too old. He was receiving retirement benefits but it
was unclear when he had retired. In a March 1996 rating
decision granting pension benefits, the RO noted that the
veteran had not worked since 1993 and had experience as a
janitor. He was granted pension benefits due to a cervical
and lumbar spine disorder.
In his April 1996 claim for a service-connected psychiatric
disorder and a total disability rating, he indicated that he
had not worked since 1990, had a high school education, and
had 19 years experience as a janitor. An August 1996
psychological report also noted experience as a service
station attendant, lumber stacker, a presser in a cleaners,
shipping clerk, food service worker, asphalt truck driver,
and janitor until retiring at age 62. At that time, he
reported he could not work due to the severity of his back
problems and the clinical psychologist indicated that the
veteran's PTSD symptoms were mild in the sense that he could
work in the past. Most recently, the veteran testified that
he could not work due to a respiratory problem.
Legal Analysis: In this case, the veteran does not have a
single disability rated at 60 percent. As noted above, his
only service-connected disability is PTSD, currently
evaluated at 30 percent disabling. Therefore, he fails to
meet the schedular mandate of a total rating. Nonetheless,
the threshold question is whether the veteran's service-
connected disability is sufficient, in and of itself, to
render him unable to secure or follow a substantially gainful
employment.
To that end, the Board has carefully considered the medical
evidence and finds that the medical evidence does not show
that the veteran's service-connected disability precludes him
from securing or following substantially gainful employment.
First, no health care professional had indicated that the
veteran is unemployable due to his PTSD symptoms. In fact,
the August 1996 clinical psychology report noted that the
veteran's PTSD symptoms were mild because he had been able to
work in the past. Further, the Board is persuaded by the
veteran's own testimony that he was unable to work due to
various physical problems, including a spinal disorder and a
respiratory disorder. Moreover, it is apparent that the
veteran retired when he reached a retirement age. Therefore,
the Board finds that the evidence does not demonstrate that
his service-connected disability is sufficient to render it
impossible for the average person or for the veteran
individually to secure and follow any substantially gainful
occupation. In evaluating the veteran's claim, the Board
stresses that only disabilities stemming from the service-
connected condition, namely PTSD, may be considered. The
Board also notes that the veteran has multiple medical
problems, which are not shown to be related to his service-
connected disability or otherwise service connected at this
time. In this case, although the veteran clearly experiences
a level of disability with respect to his PTSD, the clinical
evidence of record suggests that the worsening of the
veteran's multiple nonservice-connected disabilities is the
primary reason he is unable to work.
The fact that the veteran is unemployed is not enough. The
threshold question is whether his service-connected disorder,
without regard to any nonservice-connected disorders or
advancing age, make him incapable of performing the acts
required by employment. See Van Hoose v. Brown, 4 Vet. App.
361 (1993). He has not presented, nor has the Board found,
circumstances that place this veteran in a different position
than other veteran's rated with a single, service-connected
disability rated at 30 percent disabling. For a veteran to
prevail on a claim based on unemployability, it is necessary
that the record reflect some factor which takes the
claimant's case outside the norm of such veteran. See 38
C.F.R. §§ 4.1, 4.15 (2001); Van Hoose v. Brown, 4 Vet. App.
361 (1993).
The veteran's PTSD is not, in the Board's determination, so
severely disabling as to render him or the average person
similarly situated unable to secure and follow substantially
gainful employment, nor does the evidence of record reflect
that this condition would render him individually unable to
follow a substantially gainful occupation. To this end, the
Board places greater probative value on the August 1996
private psychological evaluation which concluded, in effect,
that the veteran's PTSD symptoms were "mild in the sense
that they allowed him to work . . . and [were] not
disabling." The Board finds this medical opinion
affirmative evidence that the veteran was employable despite
a diagnosis of PTSD. See Bowling v. Principi, 15 Vet. App. 1
(2001). Thus, it is the Board's determination that the
veteran is not precluded from performing a substantially
gainful occupation as a result of his service-connected PTSD
disability. Accordingly, entitlement to a total disability
rating based on individual unemployability is not warranted.
In reaching this conclusion, the Board has considered 38
C.F.R. § 3.321(b), 4.16(b), which provides that, to accord
justice to the exceptional case where the schedular
evaluations are found to be inadequate, an extraschedular
evaluation commensurate with the average earning capacity due
exclusively to the service-connected disability or
disabilities may be assigned. The governing norm of these
exceptional cases is a finding that the case presented such
an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of regular schedular standards. Here, the
Board finds the evidence in its entirety does not present
such an exceptional or unusual disability picture as to
render impractical the application of regular schedular
standards. The Board is persuaded by the medical evidence
showing that the veteran is on no psychotropic medication,
does not receive treatment for a psychiatric disorder, and
has not been hospitalized for psychiatric symptomatology.
Considering only the single service-connected disorder, the
Board finds that the veteran is not entitled to a total
evaluation under the applicable provisions of 38 C.F.R. Parts
3 and 4.
Finally, in denying the veteran's claims on appeal, the Board
has considered the Veterans Claims Assistance Act of 2000,
which, among other things, redefined the obligations of VA
with respect to the duty to assist and included an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. The law
also eliminated the concept of well-groundedness and is
applicable to all claims filed on or after the date of
enactment or those filed before the date of enactment but not
yet final as of that date. See 38 U.S.C.A. § 5103A (West
2001). Additionally, in August 2001, VA issued regulations
implementing the provisions of VCAA "to establish clear
guidelines consistent with the intent of Congress regarding
the timing and the scope of assistance VA will provide to a
claimant who files a substantially complete application for
VA benefits." See 66 Fed. Reg. 45620-45632 (Aug. 29, 2001).
In this case, the Board finds that the RO has met its duty to
assist the veteran in the development of these claims under
the VCAA. By virtue of the information contained in the
statement and supplemental statements of the case issued
during the pendency of the appeals, the veteran was given
notice of the information, medical evidence, or lay evidence
necessary to substantiate the claims. Further, it appears
that all medical records identified by the veteran have been
associated with the claims file. In addition, the veteran
underwent multiple VA examinations specifically to address
the issues on appeal. Next, the issues were the subject of a
hearing before the Board in October 1999 and a Board remand
dated in January 2000. Therefore, the Board finds that the
mandates of the VCAA have been satisfied.
ORDER
The claim for an increased disability rating for PTSD, rated
as 10 percent disabling prior to February 16, 2000, is
denied.
The claim for an increased disability rating for PTSD,
currently evaluated as 30 percent disabling, is denied.
A total disability rating due to individual unemployability
resulting from a service-connected disability is denied.
M. W. GREENSTREET
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you